Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cr-00445-LTB

Document 75

Filed 06/03/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 04-cr-00445-01-LTB UNITED STATES OF AMERICA, Plaintiff, v. JOSE LUIS ZAPATA-NEVANEZ, Defendant.

RESPONSE TO DEFENDANT'S MOTION FOR CONSECUTIVE TERM IMPRISONMENT PURSUANT TO 18 U.S.C. § 1028A (sic)

COMES NOW, the United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, and through Wayne Campbell, Assistant United States Attorney, and responds to the defendant's above styled motion. Defendant's pro se Motion is actually an argument pursuant to Fed Rule Crim Proc. Rule 35 seeking correction or reduction of sentence. A review of the records of the U.S. District Clerk for the District of New Jersey and of the U.S. District Clerk for the District of Colorado is necessary to determine that no mistake has been made and that the U.S. Bureau of Prisons has accurately calculated the terms of imprisonment which defendant will be expected to serve prior to his deportation to Mexico. The most important date in considering the beginning of defendant's sentence was October 21, 2004, the first date on which defendant was formally charged in the District of Colorado, in the above styled and numbered cause. Defendant subsequently pleaded guilty to a count of Interstate Travel in Aid of Racketeering in the above styled and numbered cause.

Case 1:04-cr-00445-LTB

Document 75

Filed 06/03/2008

Page 2 of 3

Defendant had already been convicted and was serving a sentence from the U.S. District Court for the District of New Jersey for Conspiracy to Distribute Cocaine for which he received a 53 month sentence. On November 10, 2005, this court sentenced defendant to 60 months in the U.S. Bureau of Prisons and ordered the sentences to be served concurrently. The U.S. Bureau of Prisons is correctly running time served from October 21, 2004, the date on which defendant was charged in Colorado. There is no "relation back" theory to run the 60 month Colorado sentence back to the time defendant was incarcerated in New Jersey. The two sentences are presently running concurrently as ordered by this court. There is no proper reason for modification nor reduction of sentence. Defendant owes 60 months from the date he was originally charged in the District of Colorado. The U.S. Bureau of Prisons in responsible for computing credit for time served in official detention. United States v. Wilson, 503 U.S. 329, 331 (1992). Defendant's Motion to reduce sentence by constructing a new rule of "relation back" to a date before which he was formally charged in Colorado, must be denied. Respectfully submitted, TROY A. EID United States Attorney BY: s/ Wayne Campbell WAYNE CAMPBELL Assistant United States Attorney United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0319 FAX: (303) 454-0401 E-mail: [email protected] Attorney for the Government

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Case 1:04-cr-00445-LTB

Document 75

Filed 06/03/2008

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of June, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Kirkland Leonard Brush E-mail: [email protected], [email protected] Robert William Pepin E-mail: [email protected], [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: Jose Luis Zapata-Nevanez Reg. No. 26157-050 Pine Prairie Correctional Center P.O. Box 650 Pine Prairie, LA 70576 Via U.S. Mail Kurt Thoene U.S. Probation Via e-mail: [email protected]

s/ Cathy Palma CATHY PALMA, Legal Assistant United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 FAX: (303) 454-0401 E-mail: [email protected]

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